Biden administration moves to scrap 'Remain in Mexico'

The Biden administration on Wednesday said they would craft a new memo rescinding former President TrumpDonald TrumpMcCabe wins back full FBI pension after being fired under Trump Biden's Supreme Court reform study panel notes 'considerable' risks to court expansion Bennie Thompson not ruling out subpoenaing Trump MORE’s "Remain in Mexico" policy, an effort to respond to a court decision ordering them to reinstate the program.

The Supreme Court in August upheld a lower court decision requiring the Department of Homeland Security (DHS) to re-implement what is formally known as the Migrant Protection Protocols (MPP).

DHS on Wednesday announced it would uphold that injunction "in good faith," but the agency plans to again rescind MPP once the injunction is lifted.

"A new memorandum terminating MPP will not take effect until the current injunction is lifted by court order," reads the DHS announcement. "In issuing a new memorandum terminating MPP, the Department intends to address the concerns raised by the courts with respect to the prior memorandum."

DHS said it has ongoing high-level diplomatic discussions with Mexico and a task force to restore the infrastructure to implement MPP in the meantime.

But the announcement that MPP's reinstatement will be at most temporary belies confidence from the Biden administration that it will ultimately prevail on the matter in court.

MPP was one of the most controversial Trump-era immigration programs, as it often led to migrants encamping in dangerous and unsanitary conditions in Mexican border cities.

While Mexico was reluctant to accept the agreement, former President Trump threatened to tie migration policy and trade policy, essentially dangling the possibility of sanctions on Mexico if it did not receive the migrants ejected from the United States.

It's unclear what arguments U.S. diplomats are taking to Mexicans for them to accept a renewal of the program.

Under the Trump administration, DHS returned as many as 70,000 migrants from across the globe to Mexico, creating refugee camps in Mexican border cities.

Domestically, MPP was challenged by immigration advocates, who argued it was a direct violation of U.S. and international asylum laws, which give migrants the right to apply for asylum once in a country's territory.

Under MPP, U.S. authorities would initiate the asylum process, but then expel the migrants to Mexican territory, forcing them to wait out their immigration court proceedings in that country.

The Biden administration's decision to reimplement MPP angered some advocates, who argued earlier this month he should simply issue a new memo.

“If the administration really wants the policy outcome, it could certainly rewrite the memo," Ahilan Arulanantham, co-director of the Center for Immigration Law & Policy at the University of California, Los Angeles School of Law, previously told The Hill.

He said the Biden administration should take a page out of the the Trump administration’s playbook, when it continually rewrote its Muslim ban. 

"They wrote in one way, it got struck down. They write it again, it goes to the Supreme Court. They write it again, each time curing whatever defects the court is describing in order to make it harder to attack. And surely you could do that here, and the court decisions give you the road map for how to do it. It’s not rocket science,” Arulanantham said. 

That would involve crafting a lengthy memo detailing the rationale for rescinding MPP, which the Biden administration is now doing.

“They frankly should consider issuing a very lengthy, 100-page-plus memo going through every detail they possibly can about the program, the reasons for rescinding it, and the problems they see with it to call Judge Kacsmaryk’s bluff,” Jorge Loweree, policy director at the American Immigration Council, previously told The Hill, pointing to the federal district court judge who first directed Biden to re-implement MPP.